Com. v. Melecio, J.

Superior Court of Pennsylvania

Com. v. Melecio, J.

DecidedFebruary 3, 2020

Docket1101 MDA 2019

StatusUnpublished

This text of Com. v. Melecio, J. (Com. v. Melecio, J.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Com. v. Melecio, J., (Pa. Ct. App. 2020).

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Opinion

J-S73034-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JULIO ERIGUE MELECIO, : : Appellant : No. 1101 MDA 2019

Appeal from the PCRA Order Entered June 5, 2019 in the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0002388-2016

BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED: FEBRUARY 3, 2020

Julio Erigue Melecio (“Melecio”) appeals from the Order denying his first

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

On September 14, 2017, following a jury trial, Melecio was found guilty

of one count of rape and two counts of involuntary deviate sexual intercourse.1

The trial court sentenced Melecio to an aggregate term of thirty to sixty years

in prison. This Court affirmed the judgment of sentence. See

Commonwealth v. Melecio, 200 A.3d 550 (Pa. Super. 2018) (unpublished

memorandum). Melecio did not file a petition for allowance of appeal with the

Pennsylvania Supreme Court.

____________________________________________

1 18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1). J-S73034-19

On January 7, 2019, Melecio, pro se, filed the instant timely PCRA

Petition. The PCRA court appointed Melecio counsel, who filed an Amended

Petition. On June 4, 2019, following a hearing, the PCRA court denied

Melecio’s Petition. Melecio filed a timely Notice of Appeal and a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.

On appeal, Melecio presents the following claim for our review:

Whether the [PCRA c]ourt’s denial of [Melecio’s] Petition for [p]ost-[c]onviction [c]ollateral [r]elief and failure to find [that trial] counsel was ineffective was an abuse of discretion[,] where trial counsel failed to introduce into evidence the testimony and/or repo[r]t of Dr. Suzanne Rotolo[,] which noted discrepancies and issues with the [“SAFE”]2 exam conducted on the victim[,] and said evidence would have countered the [testimony of] the expert witness, [SAFE] nurse Patti O’Brien, [who was] called by the Commonwealth?

Brief for Appellant at 3.

“The standard of review of an order dismissing a PCRA petition is

whether that determination is supported by the evidence of record and is free

of legal error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super.

2017). “The PCRA court’s findings will not be disturbed unless there is no

support for the findings in the certified record.” Id. (citation omitted).

Melecio alleges that his trial counsel, James Rader, Esquire (“Attorney

Rader”), was ineffective in failing to call Susanne Rotolo, M.D. (“Dr. Rotolo”),

to testify as an expert witness at trial. See Brief for Appellant at 9-17. Melecio

2“SAFE” is an acronym for “Sexual Assault Forensic Examiner.” See N.T., 9/12/17, at 182.

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claims that Attorney Rader’s explanation for not calling Dr. Rotolo as a

witness—that Dr. Rotolo’s testimony would have been redundant with his

cross-examination of SAFE nurse Patti O’Brien (“O’Brien”)—was unreasonable,

because Attorney Rader failed to elicit from O’Brien all of the information to

which Dr. Rotolo would have testified. Id. at 13-17. Specifically, Melecio

claims that Dr. Rotolo would have testified that O’Brien could not determine,

by the nature of the victim’s bruising, whether (1) Melecio’s sexual contact

with the victim was non-consensual, and (2) the bruising was caused by

Melecio’s sexual contact with the victim. Id. Melecio states that he was

prejudiced because the additional information may have led the jury to find

him not guilty. Id.

To prevail on a claim of ineffective assistance of counsel under the PCRA,

a petitioner must plead and prove, by a preponderance of the evidence, that

counsel’s ineffectiveness “so undermined the truth-determining process that

no reliable adjudication of guilt or innocence could have taken place.” 42

Pa.C.S.A. § 9543(a)(2)(ii). Specifically,

[t]o be entitled to relief on an ineffectiveness claim, a PCRA petitioner must establish: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel’s action or failure to act; and (3) he suffered prejudice as a result of counsel’s error, with prejudice measured by whether there is a reasonable probability the result of the proceeding would have been different. Commonwealth v. Chmiel, … 30 A.3d 1111, 1127 (Pa. 2011) (employing ineffective assistance of counsel test from Commonwealth v. Pierce, … 527 A.2d 973, 975-76 (Pa. 1987)). Counsel is presumed to have rendered effective assistance. Additionally, counsel cannot be deemed ineffective for failing to raise a meritless claim. Finally, because a PCRA petitioner must

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establish all the Pierce prongs to be entitled to relief, we are not required to analyze the elements of an ineffectiveness claim in any specific order; thus, if a claim fails under any required element, we may dismiss the claim on that basis.

Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (footnote and

some citations omitted).

Relating to the reasonable basis prong, generally, where matters of strategy and tactics are concerned, counsel’s assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client’s interests. Courts should not deem counsel’s strategy or tactic unreasonable unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.

Commonwealth v. Durrett King, 195 A.3d 255, 259 (Pa. Super. 2018)

(quotation marks, brackets and citations omitted).

Where a claim is made of counsel’s ineffectiveness for failing to call witnesses, it is the appellant’s burden to show that the witness existed and was available; counsel was aware of, or had a duty to know of the witness; the witness was willing and able to appear; and the proposed testimony was necessary in order to avoid prejudice to the appellant. The mere failure to obtain an expert rebuttal witness is not ineffectiveness. [The a]ppellant must demonstrate that an expert witness was available who would have offered testimony designed to advance appellant’s cause. Trial counsel need not introduce expert testimony on his client’s behalf if he is able effectively to cross-examine prosecution witnesses and elicit helpful testimony. Additionally, trial counsel will not be deemed ineffective for failing to call a medical, forensic, or scientific expert merely to critically evaluate expert testimony that was presented by the prosecution. Thus, the question becomes whether or not defense counsel effectively cross-examined the Commonwealth’s expert witness.

Chmiel, 30 A.3d at 1143 (citations, quotation marks and brackets omitted;

emphasis added).

-4- J-S73034-19

It is undisputed that Dr. Rotolo was able and willing to testify at

Melecio’s trial. Therefore, our inquiry is limited to whether trial counsel

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